The Georgia Supreme Court this week heard oral arguments in the case of a Fulton County Jail detainee who died five years ago after being shocked with a Taser and pepper sprayed.
Six jailers were indicted on murder and other charges in the 2018 death of Antonio May. The indictment was thrown out last year when a Fulton judge ruled the jailers should have been allowed to appear before the grand jury.
At issue is whether the county jailers should be considered peace officers under state law. Defense attorneys argue they should be afforded the same rights as police officers. The DA’s office contends they are not peace officers because they lack arrest powers and only have authority inside the jail.
May, a 32-year-old father of three from Macon, was shocked, beaten and pepper sprayed, according to a federal wrongful death lawsuit filed by his family. He was arrested for allegedly throwing rocks at the windows of the American Cancer Society building downtown.
May died from “sudden cardiovascular collapse from probable excited delirium with physical restraint use, while under the influence of methamphetamine,” according to a Fulton County Medical Examiner autopsy report. The report also mentions he was tased and pepper sprayed but says the role of these actions in his death is unclear.
A report from a forensic pathologist hired by May’s family said the “physical restraints and other measures utilized by the jailers were to a reasonable degree of medical certainty the cause of his death.”
The jailers, Arron Cook, Guito Dela Cruz, Omar Jackson, Jason Roache, Kenesia Strowder and William Whitaker, were indicted in late 2021 and charged with murder, aggravated assault, battery and violating their oath of office. All six pleaded not guilty.
Credit: Fulton County Sheriff's Office
Credit: Fulton County Sheriff's Office
In November, Fulton Superior Court Judge Robert McBurney tossed the indictment after determining the jailers should have been allowed to appear before the grand jury as state law requires for current and former peace officers accused of committing crimes during the performance of their official duties.
The DA’s office challenged that decision, arguing before the state’s high court on Tuesday that the jailers are not peace officers and therefore not entitled to appear before the grand jury.
“The special privilege to appear before a grand jury is not provided to jailers by Georgia law,” Fulton District Attorney Fani Willis said after McBurney’s November ruling.
McBurney said the jailers were POST-certified and, as sworn officers, should have been notified of the indictment and allowed to address the grand jury.
“They were similarly entitled to appear before the grand jury as it considered the state’s presentment,” McBurney wrote. “Because none of this occurred, the present indictment remains quashed.”
Assistant District Attorney Charles Jones told justices that jailers don’t have the authority to make arrests in public and undergo far less training than police officers. While they are tasked with breaking up fights in the jail, seizing contraband and preventing escapes, “Their daily work is solely within the four walls of that jail,” he said. “Keeping order within that jail doesn’t make you a peace officer.”
Jones noted that judges and teachers must keep order in courtrooms and classrooms.
By that definition, “all mothers would be peace officers because they maintain order between siblings,” said Justice Sarah Hawkins Warren.
Attorney Amanda Clark Palmer, who represents Roache, argued McBurney was right to toss the indictments. She said jailers must take oaths promising to uphold and enforce the law behind bars.
“The purpose (of the statute) is to protect officers who are called upon to make split-second decisions that are often life and death,” Palmer told the court.
Presiding Justice Nels Peterson noted every public official is required to swear an oath and could be criminally charged for violating it.
The justices are expected to make a ruling in the coming months.
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